HARWINDER SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1023/2017

[2020] HKCFI 1426

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1023 OF 2017

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for judicial review be refused.

Observations for the Applicant:

Procedural history

1.  The applicant entered Hong Kong illegally on 13 September 2016 from China by running through the Lok Ma Chau Control Point.  He was refused permission to land.  He was arrested by the police and convicted of illegally remaining and obstructing an officer of immigration on 9 November 2016 and given 15 months’ imprisonment.  He was discharged on 17 July 2017 and detained at Castle Peak Bay Immigration Centre.  The applicant submitted a non-refoulement claim by way of written representation on 23 January 2017.  His non-refoulement claim form was submitted on 28 July 2017.

2.  The applicant attended a screening interview on 12 August 2017.  The Director of Immigration (“the Director”) dismissed his claim on all grounds by Notice of Decision (“the Decision”) on 16 August 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Ms Betty Kwan (“the Adjudicator”), heard his appeal on 17 November 2017.  The Adjudicator considered his appeal on all applicable grounds including BOR 2.  The Adjudicator refused his appeal on 24 November 2017.

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 6 December 2017 and did not request an oral hearing.  The matter was therefore considered on the papers.

Background

4.  The applicant is an Indian national.  He was born on 9 August 1990, in the Punjab.  He received eight years of formal education but has no work experience of any kind.  He is married with one daughter.  His claim arises out of a dispute over land owned by the applicant’s father.  In 2004, the land was rented to an uncle called Didar Singh (“DS”).  His father went away when the applicant was still quite young and he says the family eventually lost contact with him and he cannot be traced.  According to the applicant, DS paid only two monthly rental instalments for the land and has since occupied it without payment.  As a result, the family were left impecunious with no means of income and had to rely on support from the extended family and have done so ever since.  In 2006, the applicant and his mother asked DS to pay the rent or give up the land.  DS assaulted the applicant by slapping him twice but did not hurt the applicant’s mother.  As this was a private matter, the applicant did not report the incident to the police.  The applicant maintains that he was scared as a result of this incident and therefore left India and went to Malaysia to live with a relative. He stayed there for two years returning home in 2009, when his visa was about to run out.  Between 2009 and 2013, he lived at home in India.  Nothing of any significance occurred during that time.  However, in 2013, the applicant met his cousin and three male friends who, without warning, attacked him with choppers because he had asked for the return of his land.  The applicant attended a private clinic to have his wounds dressed and received ointment and painkillers only although he says that his head and his arm were scarred by the incident.  After that incident, the applicant went to Delhi and then to Dubai as his sister was there.  He obtained an employment visa to work as a labourer but did not work at all during his two‑year stay in Dubai.  In 2016, he returned to India (again because his visa was about to expire).  Upon his return, he asked DS for the return of his father’s land as he wished to farm it himself.  DS refused, orally abused the applicant, and threw him out of his house.  This was reported to the village head but he said it was a private family matter.  The applicant therefore went to report the matter to the police but on his way to the police station he met his cousin and three to four males armed with choppers, wooden sticks and baseball bats.  He told them he was about to make a complaint to the police and they hit him all over his body, making his shoulder bleed and he had two teeth knocked out.  The attack lasted 15 minutes.  His neighbours took him to the hospital and the police were called but they advised against making a report and were also verbally abusive towards him.  On this occasion his wounds were bandaged and he received ointment and painkillers.  A few days later, he says the same group of people tried to kill him.  They carried the same weapons as before, although this time they did not hit him but verbally abused him and ran after him.  The applicant escaped and fled to a relative’s home in Batala and from there he flew to China.

The non-refoulement claim

5.  Under the Unified Screening Mechanism (“USM”), the applicant’s claim is to be assessed on all applicable grounds which are:

i.     Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”).  Under torture risk, the applicant must establish he has substantial grounds for believing he will be subjected to torture if returned to his home state.  Those grounds cannot be speculative or theoretical and the risk of torture must be real and personal.  The standard of proof is a low one.

ii.     Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“the HKBORO”), Cap 383 and Article 7 of the ICCPR (“BOR 3 risk”).  Under BOR 3, the applicant must establish that he has a genuine and substantial risk of being subject to mental or physical torture; cruel, inhuman or degrading ill treatment; or punishment, if returned to his home state.  The level of such mental or physical torture etc. must reach a minimum level of severity.

iii.     Risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).  Under persecution risk, the applicant must establish that he has a well-founded fear that there is a real chance that he will face persecution based upon race, religion, nationality or membership of a social group or political opinion if he is expelled and returned to his home state.

iv.     Risk of a violation of the right to life under Article 2 of section 8 of the HKBORO, Cap 383 and Article 6 of the ICCPR (“BOR 2 risk”).  Under BOR 2, the applicant must establish a real risk that he will be arbitrarily deprived of his life, have a death penalty imposed upon him; or be the victim of genocide or otherwise be deprived of his rights under BOR 2.

6.  It is the duty of the Director and the Adjudicator to weigh all of the available credible, reliable evidence and ascertain whether the applicant had established the factual basis of his claim.  The Director and Adjudicator must then assess the level of harm the applicant says he fears.  Each ground of claim above has a relevant level of risk.  It is for the applicant to establish that he is the subject of such risk.  Under the HKBORO, he must show substantial grounds for believing that the harm which he fears is “foreseeable, real, personal and present”.  The question is whether there is a real risk or real chance of the occurrence or recurrence of the harm which he fears.

Decision of the Director

7.  The applicant has sought to judicially review the Director alone.  As the applicant has already utilised the channel of appealing the Director’s decision to the TCAB and the TCAB treated the appeal as a rehearing, the Decision of the Director is not susceptible to judicial review once an appeal to the board has been pursued by the claimant and dealt with.  I have however considered whether there are any grounds for judicial review of the Adjudicator in order to save court time and expense.

Decision of the Adjudicator

8.  The Adjudicator analysed the applicant’s claim on all applicable grounds.  She arranged for an oral hearing and treated the appeal as a rehearing.  She correctly set out the law and key legal principles including the burden and standard of proof.  The Adjudicator was at great pains to establish the credibility of the background information as to the various characters relied upon by the applicant.  He was given every opportunity to answer the apparent inconsistencies in his evidence but was unable to provide adequate answers.  In so doing, the Adjudicator made extensive use of relevant COI materials.  The applicant was not found to be credible.  The reasons why that was the case were explained.  The Adjudicator did not believe that the father had owned, and then rented out, the land in question to DS.  Nor that the applicant and his family had been supported by the remainder of the family throughout with no other means of support.  There was insufficient nexus between the fear of harm from DS and the land as it was apparently still owned by the applicant’s father.  As DS was in possession of it, there was no advantage to DS in making any threat against the applicant.  In any event, there was clearly no state involvement.  This was a wholly private matter.  As a result, he had not met the burden placed upon him to substantiate his claim.

Leave to apply for judicial review

9.  Judicial review is not a rehearing of the merits of the applicant’s original application for refugee status.  This is an application to apply for leave to judicially review the decision of the Adjudicator.  The applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by the Adjudicator when dealing with his application in order to obtain leave to judicially review her.

Grounds of review

10.  There were no grounds of review.  The applicant merely states that it was unfair and unreasonable.  He has not complained of any specific procedural irregularity, unfairness or unreasonableness.  The applicant has a duty to state the grounds of his intended judicial review and that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.  I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

11.  Despite the fact that the applicant did not submit any proper grounds of review, I have considered the papers carefully.  I have not found any error of law or procedure.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the applicant, the Adjudicator engaged in a joint endeavour with the applicant and considered all relevant criteria; gave the applicant a reasonable opportunity to state his case and enquired into that case appropriately.  There is no criticism of her determination, which was open to her on the facts and eminently reasonable.

12.  In my judgement, there is no reasonably arguable basis upon which the applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence.

Form CALL-1